illegal. at the trial, those same people had the gall to say this whole thing is really unfair to me because i am losing customers because they say i don't want to pay a living wage. there are other restaurants in the city putting up signs saying we a living wage and guess what. all the people going there! you are right. they are paying another $0.30. they don't even know the difference. you are exactly right. that is what my research -- once people decide to go out and have a range in terms of they are not going to go to the fanciest restaurant, but a $13 a meal, it is pull dollars and $0.80 or $13.10 you don't even notice it. that is exactly what happened in this city and it wasn't that people were big spenders but for another $0.20 they would support living wage in their community.

>> i am glad -- there are other waitress jobs, somebody else part-time. >> that is a big debate in economics, whether what really happens is you stop hiring. the facts are the evidence -- this is after years of debate. the fact i you don't see that. the rate at which it increases may slow down slightly. and example like at mcdonald's, you have to have machines where people fill out their own glasses instead of having somebody fill the glass but generally speaking there isn't evidence that shows that employment goes down. it may go down a little bit. sometimes it may handle of a little bit. it may go up because people are

willing to say, we are ethical people, we want to see workers have a decent wage and if a restaurant is doing that, great. we will go to that restaurant and that is exactly what happened when it became one of the best things about the whole living wage movement which was nine--in the early 90s until the crisis, that you had these discussions in communities where ordinary people got together. most people never thought about what you just said. once they heard it, it actually meant something to them. >> you want to say one more thing? we will wrap up. >> these companies that don't pay a living wage, who pays for them? i work at walmart for 13 years,

i make $12.70 an hour after 13 years. i am entitled from the government i get help with my oil, i get food stamps, i can get all kinds of help from the government. who is paying for this? you are. it is coming out of your taxes. you are paying, you are helping the waltons get richer. >> that is a great point. i want to thank bob for a terrific presentation and everybody else for participating. we will be having bob sign. thank you for coming. [applause] >> you are watching c-span2 with

politics and public affairs weekdays featuring live coverage of the u.s. senate, weeknights what the public policy events and every weekend the latest nonfiction authors and books on booktv. get our schedules at our web site and you can join in the conversation on social media sites. >> now on booktv frankie's theirbrook, chief judge of the u.s. court of appeals discusses the late robert -- robert the late robert -- robert bork's justice: watergate, the saturday night massacre, and other adventures of a solicitor general". judge bork finished writing the draft of this book prior to his death in december of 2012. this is a little under an hour. >> thank you. we are gathered to discuss

robert justice: watergate, the saturday night massacre, and other adventures of a solicitor general". i am here because i worked as one of bob's assistance for a two years and we were friends between 1974 and his death last fall. i need to open with a confession. i can't say very much about the book. i will talk instead about bob, the man and the solicitor general. the reason i can't say much about the book is that it principal focus was his first six months on the job. when he wrote the brief that persuaded spiro agnew to plead guilty and resign as vice president, when he persuaded the supreme court to stop justice douglas's crusade to end the u.s. from prosecuting the vietnam war, when he fired archibald cox as watergate special prosecutor and appointed leon schwartz key to replace him and when he served as acting attorney general for three months between the time elliot

richardson resigned and william sacks was appointed, not bad for one's first six months on the job. the title "saving justice" comes from bob's decision not to resign after the saturday night massacre, which by the way he thinks should have been called the saturday night involuntary manslaughter because nixon didn't plan it but just blundered into a. bob believed the president has the authority to control everyone in the executive branch and to fire insubordinate personnel and cox had proclaimed his insubordination on national tv. whether a president is wise to exercise that authority is for history to decide to. attorney general richardson had promised the senate that he would maintain of special prosecutor in place and he fought therefore that he had to resign when nixon asked him to

fire cox, but bob bork had not made any such promise. he thought the president was untitled to dig is done grave if he insists. also thought that he should not gain by the deep and certainly should not appear to be a toady so he planned to fire cox and quit. the deputy attorney general talked-about of resignation. there was no line of succession in the department of justice after the solicitor general so if bob had walked the plank the department of justice would have been leaderless. no one knew who the president might install. richardson and bork all feared would be a political shell leading the assistant attorney general and much of the department senior leadership to resign and crippling the department. so bob bork saved justice by staying. had he quit in protest he

probably would have been treated as a national hero and confirmed to the supreme court in 1987. perhaps he would have been appointed by president ford in 1976 to the sea-tac that went to john paul stevens. he was on the list-edward levy sent to president ford, possibilities. had he quit the nation as a whole would have suffered so he stayed in office. he was so determined not to benefit that he turned down an opportunity to be appointed as attorney general, turned down the chance to work from the attorney general's more elegant office, avoided the attorney-general's private dining room and turned down the attorney-general when he was acting attorney general. i can't say much more about those times. they occupied the last six months of 1973 and i did not arrive in the solicitor

general's office until mid 1974. everything robert bork says in his book he said in 1974 too. the people who worked with him marked closely than. so edmund kitsch and keith jones tell the same story and bork's narration is consistent with the man i knew for 40 years, intellectual, considering consequences before acting and absolutely honest. also the funniest man i ever met. that didn't come through mid-1987 hearings but the book is full of his wit. the life of the solicitor general, like the life of a judge, is reactive. other people decide what suits to bring. the solicitor general controls the government presentation in those suits to the supreme court where petitions to file, what responses to file, merit brief, worrell arguments and the

solicitor general also decides when the government will replant adverse decision by a district court or seek rehearing from a court of appeals. the solicitor general has authority to decide when if at all he will leave his eye in the supreme court or court of appeals. it is a broad portfolio that requires a large base of knowledge plus the ability to learn fast. the solicitor general does not control who litigate about what and doesn't litigate from the justice department. cases that arrive are farmed out to the beginning divisions, civil-rights, antitrust, lands and natural resources and the environment. they make recommendations that go to the assistants and deputies. sometimes there's a control conflict. the department of justice includes the bureau of prisons and the criminal division and those people always want to defend wardens and guards in

suits by prisoners and favors the prisoners. somebody has to resolve those fights. or an assistant to the solicitor general may think the criminal division of statutory theory of prosecution is week, the solicitor general has to resolve those issues personally. robert bork conducted many consequences to sulfites within the government and also to hear presentations by private counsel. one of the office at traditions that anyone, a litigant, to meet a curious i can be heard by the solicitor general personally before the united states filed a brief in the supreme court. bob prepared carefully and asked sharp question that these meetings. he tried to advance the positions of the executive branch, not his own views. i never saw him favor his own position and never saw him misunderstand an argument.

he displayed knowledge, understanding and intellectual integrity. i plan to tell you the stories behind three of these cases but i want to mention the last of the solicitor general's task. robert bork was the best choral advocate of his generation as any of the justices would tell you and he argued a lot, twice every session for 14 times every term of the supreme court, his successor to solicitor general argued between 5 and 10 cases a year, not bob. you loved the give-and-take and was great on his feet pretty often the main task of an advocate for the united states was to find a new argument to replace the bad one that lost the case and the court of appeals. sometimes the task of an oral advocate is to patch up the holes in an argument already presented in a brief, trying to do either is chancy. justices are apt to say something like you didn't make

this argument earlier, did you? why don't you just move along? it takes grab a toss to get justices to listen. first time i saw bob in action he had a paper over a bad argument. congress had taken over the bankrupt eastern railroads, merging them to form conrail and amtrak. the railroads sued, contending the law was unconstitutional taking and should be enjoined. the lead argument filed by the united states, a brief that bob had not that'd carefully because there hadn't been any conflict in the government before was filed. the interstate commerce commission had fiddled so often in the operation of railroads that the railroads had no rights at all that they were entitled to rely on. the problem with this argument that if it were to prevail congress could pass a statute

abolishing the taking clause by claiming a right to do anything it pleases any time it wanted with anyone and their property. no more takings. the justices were not about to buy that. justice douglas, perhaps. but no serious justice. solicitor general robert bork took the oral argument himself and scuttled the main position in a brief. he withdrew it on his feet and advanced a different position but the tucker act would provide any compensation so the statutes could not be enjoined. of the takings clause does after all is provide money after the fact. that argument went well. the sponsor of the legislation in the house, rock adams, had been given time to argue, he was there to defend the government's original argument, that had so

long behaved whimsically in the railroad business that it acquired an easement across the takings clause. wants adam scott to his feet all the justices cared about was robert bork's argument about the tucker act. representative adams tried to free himself from that seem by telling the justice department house and senate between them had not fought a moment about compensation. they should just forget the tucker act. what a blunder. the tucker act applies unless repealed. adams had just told him the tucker act far from being repealed hadn't even come in the discussion. it didn't take the court long to offer unanimous decision deciding the case robert bork's way for robert bork's reasons. here's another example. the year after he left the solicitor general's office robert bork represented the credit card issuer in a suit

about other things. the credit card carries a rate of interest that was legal in the state where the bank had its headquarters and illegal in some states where customers use the card, the issuing bank was sued by a rival bank in low-interest state and his rival contended the issuer was using the location to injury to the rival by a stealing customers. the rival got the first argument and for 30 minutes everything seemed to be going its way. ..

customers with poor credit would go to the high-interest bank, a good interest would gut the low-interest bank, everybody would have business and everybody would be better off. it would be almost as if there were an invisible hand. and then he produced this line, and i quote, he needed an advertising agency instead it hired a lawyer. you should send it to the right specialist. [laughter] and after that, bob bork haditha justices eating out of his hand. it didn't take the court long to issue unanimous in his favor. the turnaround neatly by an appellate advocate. let me come now to the three case studies about solicitor general bork's role in

formulating the government's position. the first of these is one that the supreme court never decided, the boston school desegregation dispute. in "saving justice," bob bork says he first came to nixon's attention after writing an article the courts over use bus transportation and school desegregation cases. the book contains a description about a meeting at the white house where the bob's discussion of the supreme court decision impressed nixon, and that led to bork's effort to draft legislation in cooperation with professor charles alan wright. and what followed, a shocking story from today's perspective, is that the president himself redrafted the bill before it was sent to congress. when bob bork became solicitor general many cases were pressing for attention. the chief justice issued a careless opinion that muddied

the principle followed by another's improved inflammatory. the fundamental divide at this time as between people who equated racial balance with segregation and wanted courts to issue the racial balance and felt the constitution limits the government use of race accept as a remedy for racial violations. if private choice led to an balance, there was no violation. boston presented an ideal opportunity for this contrast to reach the supreme court. the district judge and court of appeals held explicitly that racial imbalance in the schools was itself a constitutional wrong and that the appropriate remedy was therefore to order that every class in the system had the same ratio black and white students. the required a lot of transportation.

but the real issue is the goal and not the means. many asked them to support the school board and to tell the supreme court to reverse. at bob's direction i wrote a brief contending that the proper goal is to undo the consequences of official racial discrimination, not to undo the consequences of private choice. bald held a customary meeting to hear all views. these became known in the press and the attorney general took an interest. here's the problem, the school board engaged in contempt of court by defying some aspects of the district court injunction and many residents of boston had engaged in violence. the supposedly liberal city had begun to act like little rock in 1958 and the mayor was sounding

like orwell. he was a serious intellectual problem but what bob bork asked them to indicate to the legal position which is mine as well in a way that would appear to give support to finance and violence. the climatic meeting was held in the attorney general's office of the last day the united states could file a brief. copies had been printed. they were ready to go. by requiring his lifelong support of the civil rights movement but also opined that the brief was legally correct. jay stanley the assistant attorney general for civil rights argued strenuously against filing. he made three points. one, the brief was incoherent, no one could tell what the legal standard contained. number two, the brief was profoundly misguided and would

damage the cause of the civil rights for schoolchildren. number three there was no need to file a brief because the civil rights division already had been implementing its standard for more than a decade. he did not notice that only one of these three mutually inconsistent points could be right though all three might have been wrong. my recommendation was not to file. i'd written a brief and i agree with myself but i thought that no comfort should be given to the violent. so they also recommended not filing. that cost him a lot. he knew that this would be his last chance for influence on a subject that he cared deeply about. but he felt that discouraging plans to the judicial orders was more important in the the attorney general agreed with the solicitor general bork. they were sent to the shredder,

this one in my hand me be the only copy though perhaps bob bork maintained copies for their final, too. i'm sure that earlier drafts had been photocopied by the division for the benefit of the press and the plaintiffs' lawyers that group made it watertight. in later years the supreme court adopted the standard of the undefiled boston brief. history tells us assistant attorney general was wrong on all three plants but bob bork didn't play a role in that process. he thought other values were more important than he deserves great credit. he got none at the time or later and if you read his brief, you will notice that, sorry, if you read his book you will notice the book doesn't mention the boston case. he didn't use his book to try to get the last word on the subject that was kept out of the supreme

court at the time, and that to me exemplifies his integrity. but to the supreme court by senator james buckley with the assistance of professor ralph winter from yale law school to the federal election campaign act cent contribution and expenditure limits for federal offices and also made the federal elections commission independent of the president. according to the press so as to take politics out of politics but more plausibly to lift the balance of political control towards congress and incumbents and away from the president and challengers. the solicitor general bob assembled his swat team for the cases and ray randolph and me went to work on a brief that must stand as one of history's

curiosities. the brief filed, and i quote, for the attorney general and for the united states as the amicus curiae, goes to great lengths house speech and money are interchangeable and it surely would violate the first amendment to set a limit on how much "the new york times" could charge for paper and why there for there were serious problems of the contribution and expenditure limits in the statute. next time somebody tells you that a contribution or expenditure limits for an election is just about money and that money is not speak you should reply that "new york times" against sullivan was just a case for tort damages, that the naacp was just a case about money for economic injury to businesses and that the alien and sedition act were just lost about imprisonment. and note by the way "the new

york times" as a corporation and therefore according to its own editorial policy was on the wrong side of "the new york times" corporation and has no rights under the first amendment and you should note that most churches also assist in the corporate farms. but the brief didn't say that final line and therefore the statute is unconstitutional. it left it to the justices to draw their own conclusions. that is always a very risky step. why this failure to go the limit on a subject about which he had such strong views? the list of signatures on the brief tells the story. the brief i discussed was signed by the attorney general, solicitor general bork, a solicitor general randolph and the guy without a title. on the same day, the attorney-general, solicitor general, deputy solicitor general fried men and another guy without a title followed a

brief on behalf of the federal election commission and the united states as a party defending the statute's constitutionality. the department of justice managed to be on opposite sides of the same case as a party and as an amicus curiae so if you think that bulkeley is an odd opinion sustaining some sections that are indistinguishable from others that are held invalid and saying attwell all is okay because i was so narrow being limited to the core of political speech while it had an odd genesis, too. there is something about the subject that seems to preclude straight talk and honest analysis and that as far as i am concerned is a very good reason why it shouldn't be regulated at all. the framers of the constitution to the political speech and activity needed protection from legislators. when legislators and members of

the executive they are afflicted by a self-interest that the stables the dispassionate analysis but if you want to see the real dispassion analysis take a look at the brief solicitor general. this one about the event leading to the immigration and naturalization service, the one house veto case which didn't reach the supreme court until after bob and i had left the government about setting up. during the ford administration the trust attorney general, solicitor general bork and assistant attorney general for the legal counsel skill -- justice scalia that the legislative veto and administrative regulations violates the bayh camera was on and the constitution.

edward set out to obtain a judicial decision as many of his predecessors had not. because we expected this question to arrived swiftly in the supreme court, the solicitor general's office was involved from the start. but anyway, no one would have dreamed of taking a position without consulting robert and he always felt the views of his staff to read you may remember the statutes and if they read something like if the agency issues a rule it is not to take effect until one house of congress, sometimes two houses of congress, sometimes one kennedy disapproves. several causes bear on this starting with article 1, section 1 which says that all was said of powers are vested in the congress of the united states, which includes a set and the house of representatives. the power is in congress, not in

any house or committees. and then there are two presentment components in article 1, section 7 walls two and three. one says every bill would show passed the house and the senate would be presented to the president coming and the other clause says every order resolution or vote to which the concurrence of the house and the senate is necessary shall be presented in a particular way. to sum up, and i'm not going to read these out to you. the congress asks by agreement of its houses following what the president can sign or veto. the legislative veto statutes reverse the position by allowing the president or his agencies to adopt some wall following which they would be vetoed by one house or one committee. of those bits of elderly text are the real constitution and they created something of a

problem. bob bork had lunch with his assistance almost every day. and the legislative veto came up because the department of justice was trying to set up a case that would reach the supreme court. and the conversation went like this, and i will rephrase my own role as well as bork. the constitution requires the concurrence of two houses of congress and the president. if the president proposes a rule and one house of congress or even a committee chairman with blocking power doesn't come along, then conference is lacking. why doesn't this sort of consensus test the constitution even if not the exact form giving its origination and the executive. bork, that's not what the constitution says. [laughter] easterbrook committee of ministry of state not only is constitutionally questionable,

but also stifles free enterprise. legislative vetoes rain and the agencies. shouldn't we welcome this development which also promotes constitutional values by enlarging the legislative role? bork, that's not what the constitution says. [laughter] >> easterbrook, the only way to make the government work in a modern economy is to write statutes and allow gap filling by rules. but the agencies may get captured by interest groups or a legislative veto makes a general delegation possible while avoiding the bad side effects. bork, that's not what the constitution says. and this conversation occurred on the supreme court with the chief justice taking apart. though i make no claim to author

or causation. these days i continue to have a conversation like that and often with my clerks in chambers. if a seine center proposes and a point of a special prosecutor and ensures us that things will work better this time than it did for the special prosecutors in the past, the exchange will go something like this. allowing the attorney general to control the prosecution of another cabinet member would create an unacceptable conflict of interest. prosecutors should be and usually are disinterested to preserve that vital functional component it's desirable to have special prosecutors appointed by a court to. the possibility of executive removal possesses the role of the president even if the president and the senate have been excluded from the appointment process.

easterbrook, that isn't what the constitution says. it wasn't our troubled history with special prosecutors that changed my mind and converted me to the prospective, the view by the way that is laid out in justice scalia's descent. it was a recognition that the constitution is an appeal to function as a claim that something else would be better than the constitution. that may or may not be true, but it isn't an admissible argument about the structure that we have and that is today's prevailing view. they can claim credit for bringing about that change in our jurisprudence. i've gone on too long but i can't close with one vignette from the post solicitor general. you remember he was locked

during the 1987 hearings he wanted to be on the court because it would be an intellectual feast. that sounded like the ivory tower by you probably don't remember the rest of his answer. the book sets out and i quote i would like to leave a reputation as a judge that understood the constitutional governments and contributed his bit to the ways the five described in the committee. the constitutional structure is the most important thing this nation has and i would like to maintain it and be remembered for it. dennett wraps up benefiting valedictory. at the end of nixon's presidency, without a soldier in the streets, we managed to transfer power that would have shattered many nations.

yet without a pre-existing love for the intellectual feast of the law i'm not sure that i would have had the wherewithal to make the correct decision that october night. whether as a judge advocate their flip sides of the same coin. without a sense it requires a sense of both temporary and duty. without the inquiry it slips into idolatry. without the duty the inquiry descends into the naval base and i close quote. just so, she did this country proud and we will miss him. [applause] i am happy to take any questions this talk brings up or that

anybody else might have about the solicitor general bork, judge bork, professor bork nouri evin advocate bork since he was a partner before he went to the legal academy. >> thank you. i enjoyed that. and i wonder if you could comment on the proposition that may be we already missed him by the fact that he wasn't placed on the supreme court and what might have happened had he did on the supreme court. it's usually quite impossible to speculate about what might have happened had he been on the supreme court, what precisely are the differences in his views from and those of justice kennedy who had that position. i don't want to speculate about that. i think that as i said in a

talk, bork was a man of great intellect and great integrity. he would have done well as a justice. but justices tend to surprise the people who appointed them. if you looked at the judge's decision on the d.c. circuit during the four years that he was there with the judge scalia, there were many cases when bork and scalia were on opposite sides of the same issues. how one works out particular details is as i say very difficult to predict. they were both justice scalia and judge bork were original lists, but often think about who were against d.c., the case on the meaning of the second amendment, that all nine justices took original list positions in the case but a divided five period four. these questions can be difficult

trying to predict what people would do i think is a fool's errand. all i can say is that he had the ability and the generally right framework about how to go about doing. >> there's a lot of discussion now about what is an activist judge and what is not for each interpretation as far as the original intent of the constitution versus today's society that is not contemplated by the authors. would you share with us what this means and what is the appropriateness today? >> the problem with the word activist is that people use it, the attach it to be hitting badly. and i am now going to fill in what badly is. the left accuses the right of the activist and the right accuses the left of being activist. it has no meaning american the idiosyncratic meaning of the

speaker and therefore it would be abolished. what you really want to discuss is not who is active and who is not as if the alternative for passivism they don't care what is in the statute and let people rule over them. the thing that needs to be discussed is whether the judge is right or wrong and whether the judge has indefensible velocity of judging. the original list approach was founded by john marshall. it's the basis of marbury versus madison. and it supposes as was said in laureate mardy the reason they have the right to over the legislature or the president in particular cases is that the constitution is a law like any

other the there's a hierarchy, the conflict of law principle, the federal law will beat the state law, constitutional will meet federal and by the wake of the treaties will be it federal law. there is a hierarchy created by the constitution. and so, when there is a particular a firm rule of law to be found in the constitution, judges have the authority to articulate. so by the way the members of the congress. when there isn't a role of law to be found in the constitution, then the political branches are supposed to have the final say. and one of the great clashes in modern jurisprudences between the people who really believe in the rationale of marbury versus madison, that the constitution wins when it is all. and the people who think well, now that we've got judicial review we can make things up as we go along, which i think is fundamentally wrong. when we, the living, have to make things up as we go along,

and believe me there is very little that is what we decided in the constitution. much of what matters in life, we the living have to make up as we go along with the constitution says those decisions are made by the states, they are made by the political branches, congress and the president together. there is the real fight and it has nothing to do with activism. >> thank you, your honor. we just had a cia director sworn in on a 1789 constitution. and that created a little conversation about the difference between the 1789 constitution and the 1791 constitution after mr. mabus and finished his homework and went to the house of representatives, etc.. so i wonder of the topic, if the sort of structural federalism versus the 1791 version ever

arose in your conversations with the judge bork and what he may have observed on that to you. >> the topic came up often although i'm not comparing 1789 to 1791. what we actually have a the moment is the 1992 constitution. the was the day of the last amendment to the constitution. which was, by the way, the final ratification in 1992 of one of the 12 amendments of madison and the house proposed to the states in 1790. the major changes, huge changes in the leader parts, the adoption of the income tax fundamentally changed the role of the federal government in the state's and the federal government can generate so much revenue that it completely over the can do anything it wants.

they used to be elected by state representatives and they are now elected by the people. that fundamentally changes the structure because congress no longer contains within it the formal representatives of the states as entities. and of course the civil war amendments, 13, 14 and 15. if anyone changed the structure of a government it was the civil war and the post civil war amendment. well, one of the things that kept coming up in the solicitor general's office was what is the meaning of section two of the 13th amendment and section 5 of the 14th amendment and the equivalent language of the 15th amendment each says congress shall have the authority to enforce these clauses of this amendment by appropriate legislation. many of the statutes expanding national power and to what is formerly state domain based on one of those enforcement

clauses, the most common of those is section 5 in the 14th amendment. .. put but can never contract rights.

where is that language in the fourteenth amendment? excuse me. second, that what it meant was congress could decide what was necessary to enforce the fourteenth amendment and bork expressed the view that neither of these propositions was true. this was the subject he brought up repeatedly when cases came to the supreme court that involved section 5 legislation and i thought then and think now that he was 50% right. he was completely right that there is no racket in that language but i thought he was wrong about relative roles of congress and the supreme court. the position and the eleventh of than and to the end of his life that section 5 says congress shall have the power to enforce this article by appropriate legislation and what bob would say is an force, not invent and what does and force mean? the only thing it can mean is to

enforce the constitution as construed by the supreme court. the question is whether congress could use its power to abolish colfax's which are constitutional. and congress tried to get rid of per legislation. he thought that was wrong. i fought that and think now that that was right and section 5 gives congress the power to do something by appropriate legislation and the power to do something to interpret the underlying document. and morgan was curiously judged centric contrary to many of his other views. and we are supposed to have a law centered view.

and what is unambiguously decided by the approved text and that is binding. everything else is decided by the political branches and i think the civil war amendments are in that mold. they are not pro judiciary statutes. the judiciary at the time was the set of people who produced dread scott. this was not a set of constitutional amendments to empower roger crony. it was a set of constitutional amendments to empower congress at the expense of the judiciary, at the expense of the states, the political branches of congress and the president would have extra powers. we talked about that all the time. i thought then and still think robert bork was right about the wretched and wrong about the relative roles of congress and the judiciary in dealing with section 5 legislation. doesn't diminish my admiration

for robert bork. he thought i was wrong too. >> i am curious if you can shed light into how he handled the confirmation hearings both as a lawyer and a human being and what his philosophy was. >> i can't really comment on how he handled them. when he was nominated for the supreme court on was already a judge and i couldn't have anything to do with politics. his main managers in this process were re randolph, his -- one of his deputy solicitor 8 generals, later to be the judge of the d.c. circuit and steve gillis, one of his former law clerks. they helped shepherd bob through this process but neither of them knew the process very well

either and i think they and he made a terrible strategic mistake, two strategic mistakes. first they made a strategic mistake in believing that these hearings had any intellectual content. so when senators asked him questions he took an seriously and tried to answer but they were not, they had no intellectual content. the senators already knew what board fought. it left the future record. they were political theater and the correct way to proceed was as political theater. this was something his hearings, everybody since, that no hearings since robert bork could be handled in anything like the same way. and the second error that he committed is related to the first. since he took this as an

intellectual exchange as if the senators were really interested in the substance, he responded with the utmost gravity and not with levity. as i said, robert bork is the funniest man i have never met. the only one who came close was marty ginsburg, justice ginsburg. he was quicker with a quip than anybody i have ever seen. most of the questions he got asked deserved ridicule, not answers and what he should have done was produced a one sentence quit and then leave it to see if members of congress could have followed up and the answer is they could not because they were reading from scripts. if you want an example of that i will tell an example of the confirmation hearing that i went through and my colleague richard posen apps through not nearly as publicly visible and when bob was nominated for the d.c. circuit he went through

unanimously. he said later that if he had never done anything in his life it would get howard metzenbaum to vote against him, he would be a failure. when he was nominated for the supreme court he found something. anyway, when i was nominated one of the questions i was asked and i'm told is one of senator thurmond's normal questions is do you think the constitution says what it means and means what it says? having been told that this question was coming, i said yes. we went on to the next question. in his script. he asked the same question of professor posey perez he then was and as the hearing transcript will show, he said that is a very difficult question. there are deep interpretive

disputes about -- than he began to catalog some of the interpretive dispute about how language changes meaning over the centuries. and there was no follow-up question. he went to it. nobody could believe -- george posey nehr's hearing was in 1981. no one told him this was political theater and you are not expected to have answers like that. since george posey marathon of this as a potential exchange of views between the nominee and the senate. he had gone with unjust by himself. the norm in these hearings is to go there with your friends and

family and his wife charlene was not there. two kids were not there. if that hearing were held today somebody would be sure to point out that at one time he published an article saying the world would be better off if there were a more active market in its options. now somebody would say i noticed neither of your children is here. when did you sell them? that is not the kind of thing that happened before the 1987 hearings. we all learned a lot about how to manage the theater of confirmation then. that seems to be it. thank you for being here. [applause]

>> visit booktv.org 2 at 0 -- watch any of the programs you see here on line. type the author or book title on the upper left side of the page and click search. you can share anything you see on booktv.org by clicking share on the upper left side of the page and selecting the format. booktv streams live online for 48 hours every weekend with top nonfiction books and authors. booktv.org. >> you are watching booktv on c-span2. here is the prime time lineup. starting at 7:00 eastern a look at the life of wilbur mills, former democratic representative from arkansas and continuously serving chairman of the house ways and means committee. and john lodge argues thanks to president obama we are on the verge of economic and social collapse. at 9:15 eastern we will hear from melanie warner, author of pandora's lunch box, how processed food took over the american meal followed by our

weekly afterwards program. this week gay-rights advocate john corvina and conservative columnist maggie gallagher engage in a point counter point discussion of gay marriage. we conclude the prime time programming at 11:00 eastern with race baiting, arguing the media is populated by pundits who play on the fears and prejudices of their viewers to garner a larger audiences. visit booktv.org for more on this weekend's television schedule. >> the e election is over and the president has been reelected and the new congress has been sworn in and we have basically what we had before other than perfect with the $4 billion to have a president be reelected, the senate remain in one party and the house remain in the republicans's hands. we have effectively gridlock. we have variations on these new terms like sequester so last week in washington, the one that never came, the snowquester and

the fiscal cliff we thought we would jump off a man die and now it is just related to the inability to find common ground on the budget. we are going from crisis to crisis and nothing in the election >> reporter: that. because our beloved nation is divided the direction we could take, it is not decided and meanwhile the power of compounding is not our friend. the recovery is the weakest it has been in modern times. our entitlement programs everybody recognizeds are unsustainable and grow in magnitude without change. are regulations are outdated, complex, costly and certainly creating too much uncertainty. our education system does not help enough young people gain the power of knowledge to pursue their dreams as they see fit. debt levels the too high and rising rapidly declining. our tax policy has gone too

complicated and punishes savings and success and our social and economic mobility, something that used to define america, something we have been proud of for legitimate reasons respective of where you start if you work hard and play by the rules you can achieve great things, that has diminished. among the developed countries of the world, we are the least economically mobile now. our country has changed and the political system which is so important to begin to break through, is not capable as yet of being able to solve these problems. >> are you interested in being part of booktv's online book club? this month we are discussing immigration wars:forging an american solution. jeb bush was on booktv preventing immigration wars. you can watch that program on line at booktv.org. as you read the books this month post your thoughts on twitter with the hash tag betv bookclub

of. and on april 30th at 9:00 p.m. eastern join our moderated discussion on social media sites. have an idea for next month? send your suggestions on which books you think we should include in our online book club on twitter, facebook or e-mail us, booktv@c-span.org. >> this year we received a record 1893 increase from 3500 students in c-span at student can video competition. watch the top 27 winning videos with their message to the president, daily throughout april beginning monday morning at 6:30 eastern on c-span and see all the winning documentary's online at studentham.org. >> the former president of ireland and for un high commissioner for human rights talk about her memoir "everybody matters" next on booktv.